In our society today, it is seldom that we see the female spouse pay child or spousal maintenance. In terms of South African law, it is a legal obligation for both parents to pay maintenance of their children irrespective of their sex. This is rooted in the equality clause of section 9 of the Constitution. Hence, the obligation of child maintenance is not based on motherhood or fatherhood, but rather it is based on blood relationship or adoption. The law strives to protect the best interest of children, this means that the payment of child maintenance is based on the income and standard of living of the persons who are obliged to pay maintenance. As such, it is clear that the financial capability of the spouses is considered and not whether they are female or male. Both parents have a duty to maintain their children who are still dependant.
In terms of our law, spouses in a marriage have the reciprocal duty to maintain each other throughout the subsistence of their marriage. This duty to maintain the spouse in need may extend beyond dissolution of the marriage. Since this duty is sprouts from the needs of the children, and not consequentially the gender of the parent, it is not only possible, but also a given, that the duty to support extends to female spouses. Therefore, upon dissolution of a marriage by death or divorce, the court may order the female spouse to pay child or spousal maintenance.
Section 9(3) of the Constitution provides that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including gender and sex. Additionally, section 10 provides that “everyone has inherent dignity and the right to have their dignity respected and protected.” Therefore, depriving male spouses the right to spousal or child maintenance by their female spouse during or after dissolution of the marriage would be an infringement of their constitutional right to equality and dignity.
The duty to support a dependant child is based on a variety of factors. This includes but is not limited to:
- With whom does the child primarily reside for most of the time?
- What contact regime is scheduled between the children and the parents?
- What are the ages of the children?
- What are the needs of the minor children?
- What are the respective incomes of the parents?
The Court will take cognisance of these factors, and make an order which is appropriate in the circumstances, and above all else, look to what is in the best interests of the children. If this is to mean that the father or the mother must make a considerable contribution to the maintenance of the children, the Court will make an order reflecting this.
The duty to support a child does not disappear for any reason, other than that the child no longer needs it, in having become independent, or having passed away. The duty to support children will also continue where one of the spouses have passed away. It is not of consequence whether a person is male or female, but rather whether the children require the maintenance which truly reflects the Court’s approach thereto.
It is caught in practice that there is on average more mothers who receive primary residence of the children after a divorce, and this would mean that as the children reside more with the mother, then the mother would require a greater contribution of maintenance to pay for the children’s day-to-day expenses. There are also many instances where the reverse is also applicable.
Whether a person is male or female does not give any indication as to what kind of maintenance contribution they can expect to pay or receive. The Courts look at whether the children need it, and which parent can provide it regardless of their gender.
